North Carolina Supreme Court Takes Custody of Sons from Gay Father

(NEW YORK, N.Y., July 30, 1998) -- The North Carolina Supreme Court Thursday overturned an appeals court and reinstated a ruling that revoked a gay father's custody of his two sons solely because of his relationship with his male partner, said Lambda Legal Defense and Education Fund.

The ruling means that Fred Smith, a Henderson County, N.C., resident, will not regain primary custody of the boys he raised from birth up until his ex-wife uprooted them with a change of custody in 1995. She argued that, despite all evidence that the children were thriving in their father's care, Smith's sexual orientation and her recent remarriage warranted a change in custody.

Lambda and North Carolina Gay and Lesbian Attorneys (NC GALA) represent Smith.

"The Court went to extraordinary lengths to rule against this gay father," said Lambda Legal Director Beatrice Dohrn, expressing shock at the decision. "This ruling undermines non-gay as well as gay parents in unmarried relationships, no matter how proven their parenting ability. The Court has opened the door to relitigating current custody arrangements for many families in North Carolina."

Co-counsel Sharon Thompson of NC GALA said, "North Carolina has a past history of determining custody not on societal prejudice, but on the health and happiness of children. It is a terrible misfortune to Fred, his family, and all North Carolina parents that anti-gay prejudice overruled the children's experiences in this case."

Justice John Webb also disagreed with the Court, stating in his dissent, "The difficulty with the majority opinion for me is that it recites actions by the defendant which the majority considers to be distasteful, immoral, or even illegal and says this evidence supports findings in fact which allow a change in custody. There is virtually no showing that these acts by the defendant have adversely affected the two children. The test should be how the action affects the children and not whether we approve of it.... I do not believe we should allow a change in custody on evidence which shows only that the defendant is a practicing homosexual." (Emphasis added.)

The 5-1 ruling, with a seventh justice concurring only with the result, pointed to Smith's long-term relationship with his domestic partner, Tim Tipton, who also helps care for the boys, as the reason for reversing an appellate ruling and supporting a trial court's order for a change of custody.

In an apparently contradictory statement, the Court said, "We do not agree with the conclusion of Justice Webb's dissent that the only basis upon which the trial court changed custody was that the defendant is a 'practicing homosexual.' Instead, we conclude that the trial court could and did order a change in custody based in part on proper findings of fact to the effect that defendant-father was regularly engaging in sexual acts with Mr. Tipton in the home while the children were present and upon other improper conduct by these two men."

The Court also disapproved of the fact that Smith and Tipton kissed each other in the presence of the children and that, although always keeping their bedroom door closed and locked if they were having sex, the couple allowed the children into the bedroom when simply in bed together. It cited these facts in support of the decision to remove custody from Smith.

"Sadly, this decision means that two kids have been torn away from a great father only because that father is gay," said Stephen Scarborough, staff attorney in Lambda's Southern Regional Office in Atlanta. "That's not the 'best interest standard,' at work. That's prejudice, pure and simple," he said.

Dohrn added, "Although professing not to, the Court applied a double standard to the gay men in this case. Non-gay parents are not judged negatively for showing affection in front of their children or for being honest with them. For any parents, those are healthy examples to model to children."

In October, 1996, the state Court of Appeals rejected a trial judge's decision and ordered the children's custody be restored to their father. It said that the trial court's conclusions against Smith were based on improper speculation rather than facts in evidence. But that order was stayed pending appeal by the mother, Carol Pulliam. The Supreme Court heard Pulliam v. Smith appeal on May 14, 1997. In 1991, Pulliam left Smith and the children, now 12 and 9, to live in Kansas with Bill Pulliam, whom she later married. After Smith's partner moved into his home in 1995, Pulliam sought the children's custody. Her challenge received support from the Family Research Council of North Carolina, which used extremist anti-gay arguments against Smith.

Lambda, the oldest and largest lesbian and gay legal organization, has its national headquarters in New York City and regional offices in Atlanta, Los Angeles, and Chicago. North Carolina Gay and Lesbian Attorneys is a legal organization that supports lesbian and gay rights throughout North Carolina.